State v. Baggot

• Citation: 96 Mo. 63,8 S.W. 737
• Parties: STATE ex rel. WATERS-PIERCE OIL CO. v. BAGGOT.
• Decision Date: 18 June 1888
• Court: United States State Supreme Court of Missouri

8 S.W. 737

96 Mo. 63

STATE ex rel. WATERS-PIERCE OIL CO. v. BAGGOT.

Supreme Court of Missouri.

June 18, 1888.

1. INSPECTION — OIL — DUTY OF INSPECTOR.

Under Rev. St. Mo. §§ 5839, 5840, 5842, 5849, making it the duty of the inspector of petroleum oils to inspect, gauge, and brand oils, and, when contained in large tanks or reservoirs, to see that the oil inspected is placed in the packages in which it is intended to be sold, and to gauge and brand them, and fixing the fee for inspecting, gauging, and branding each barrel or larger or smaller package, the inspector is bound, after having inspected oil in bulk, and seen it transferred to smaller receptacles, to brand them, whether they are barrels, casks, or wagon tanks, as the statute does not require such receptacles to be exclusively barrels, nor fix a limit of the number of gallons such packages may contain.

2. SAME.

But when such inspector has tested the oil in a large reservoir, but has not seen, and has had no opportunity to see, that it was transferred to small tanks on premises other than those where the large reservoir was located, he is not required to gauge and brand such tanks without a new test.

3. MANDAMUS — PROCEDURE — AMENDMENT.

Where, by the return to an alternative writ of mandamus, it appears that defendant, an oil inspector, is legally bound to inspect and brand certain tanks, but not all the tanks prayed for, the petition may be amended by striking out so much as relates to the latter, as the article of the practice act concerning amending pleadings and proceedings is extended by Rev. St. Mo. § 3585, to writs of mandamus.

Original proceedings in mandamus.

C. P. & J. D. Johnson, for relator. A. & J. F. Lee, for respondent.

BLACK, J.

The respondent, in compliance with the stipulation of the parties to this suit, pleaded to the petition, treating it as an alternative writ of mandamus. The relator demurred to the return, and the case stands on this state of the pleadings. The relator is a corporation engaged in refining petroleum oils in the city of St. Louis, and William Baggot, the respondent, is the state inspector of such oils for that city. The facts as admitted by the pleadings are these: The relator has a large tank or reservoir in which oils for illuminating purposes are stored. A practice has grown up by which the oil was inspected in the reservoir, and then, under the eye of the inspector, transferred to wagon tanks, holding from 285 to 585 gallons; and these wagon tanks were then gauged and branded by the inspector. The oil was then hauled to the retail dealers, and sold to them from the wagon tanks, and placed in small metal store receptacles, which were not branded by the inspector. On the 9th April, 1888, Baggot inspected a sufficient quantity of oil in the reservoir to fill the relator's wagon tanks to the number of 20 or more, and found it to be of the statutory standard for illuminating purposes; but he declined to see the same placed in the wagon tanks, which were then produced and at hand, and he also declined to gauge and brand the same. It is conceded that the relator intended in good faith to haul the oil to the retail dealers, and there sell it to them from the wagon tanks. The respondent admits it to be his duty to inspect the oil in the reservoir in bulk; but he contends that he is only required to gauge and brand it when in barrels "composed of wooden staves and heads, bound with hoops, or in packages of similar construction." His claim, put in a practical shape, is that the retail dealer can only sell from a branded barrel or branded package, and that it is this package from which the retail dealer must sell, and this only which he is required to brand. The material portions of the statute of 1879, the subsequent amendments not affecting these questions, are as follows: "Sec. 5839. It shall be the duty of the inspector or his deputy, when called upon for that purpose by the owner, manufacturer of, or dealer in any of the oils or fluids specified in the preceding section, to promptly inspect, gauge, and brand the same within the city * * * for which he is appointed. When the oil or fluid is contained in a barrel or other small package, he shall take the sample with which to make the test from the package to be inspected, gauged, and branded, and in no case shall he mark or brand any package before inspecting the contents thereof in the manner heretofore prescribed. Sec. 5840. All oils or fluids, when once inspected, gauged, and branded, as aforesaid, shall not again be subject to inspection in this state. Sec. 5842. It shall be the duty of the inspector, when requested so to do by the owner or the person having charge of the same, to inspect any of said oils or fluids specified in section 5838, contained in large tanks or reservoirs,...